Gujarat High Court
State Of Gujarat vs Arjan Dharamshi ... on 18 March, 2015
Author: K.J.Thaker
Bench: K.J.Thaker
R/CR.A/19/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 19 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.J.THAKER
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
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STATE OF GUJARAT....Appellant(s)
Versus
ARJAN DHARAMSHI KASUNDRA....Opponent(s)/Respondent(s)
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Appearance:
MS MONALI BHATT, APP for the Appellant(s) No. 1
MS ROOPAL R PATEL, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.J.THAKER
Date : 18/03/2015
ORAL JUDGMENT
1. By way of this appeal, the appellant-State Page 1 of 16 R/CR.A/19/1999 JUDGMENT has challenged the judgment and order of the learned Special Judge, Jamnagar dated 15.10.1998 rendered in Special Criminal Case No.1 of 1995, whereby the learned Trial Judge acquitted the original accused-opponent herein of the charges for the alleged offences.
2. The brief facts of the prosecution case are that the respondent-accused is the owner of a petrol pump in the name and style "M/s.Gaytri Petrolium" situated on Jamnagar-Kandla Highway No.6 at Village Amaran, Taluka Jodiya, District Jamnagar. It is further case of the prosecution that the respondent-accused has obtained the necessary licence bearing No.R-86 from the Mamlatdar, Jodiya for running the aforesaid petrolpump. The complainant-Supply Inspector, who has been empowered to search and seize, had visited the aforesaid petrolpump of the respondent-accused and took the sample of petrol and diesel in presence of panchas on 18.08.1994 for the purpose of analysis as per the prescribed standards. It is further case of the prosecution Page 2 of 16 R/CR.A/19/1999 JUDGMENT that the complainant took three samples of petrol and three samples of diesel in the bottles and sealed the said bottles in the presence of the panchas and signatures of panchas and that of Chandullal Mavjibhai Kasundra-Administrator of the pump were taken on the lables affixed on the bottles, and after drawing panchnama and following the due procedure prescribed under law, the said sample were sent to the Laboratory of I.O.C. Ltd. situated at Gandhidham-Kutch. It is further case of the prosecution that the Deputy General Manager of the said Laboratory vide letter dated 30.08.1994 sent the report of the analysis and according to the said report, the density of the samples was 0.7113. According to the register maintained by the petrolpump, the morning density was noted as 0.7065. It is further case of the prosecution that thus by comparing the density noted in the register and the density according to the report, there was difference of 0.0048. Thus, as the sample was not according to the standard specification, the Page 3 of 16 R/CR.A/19/1999 JUDGMENT respondent-accused committed breach of provisions of Section 7 of the Essential Commodities Act, 1955, and therefore, the complainant lodged a complaint with the police.
3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") committed the said case to the Court of Special Criminal Case No.1 of 1995, which was, thereafter, numbered as Special Criminal Case No.1 of 1995. Since the opponent-accused did not plead guilty and claimed to be tried, he was tried for the alleged offences.
4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 8 witnesses as well as the prosecution also produced various documentary evidences.
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5. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge, Jamnagar acquitted the accused of all the charges leveled against him. On completion of the trial, the Sessions Court passed the judgment and order acquitting the opponent-accused.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-State has preferred the present Criminal Appeal.
7. Learned APP, vehemently, submitted that the learned Trial Judge ought to have held that the sample of petrol taken by the complainant-Supply Inspector Mr.Dhirajlal Harjibhai Kanani from the petrolpump of the accused viz. Gayatri Petrolium was found sub-standard according to the report of Page 5 of 16 R/CR.A/19/1999 JUDGMENT the Deputy Managar of the Laboratory and therefore, the accused was liabel for sale, store and distribution of such sub-standard petrol. She further submitted that learned Trial Judge ought to have appreciated that when the licence for running petrolpump stands in the name of the accused and the accused has failed to challenge or prove that he is not owner of the petrolpump, the accused could not have been acquitted on that ground alone. The learned APP, further, submitted that this Criminal Appeal is required to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside.
8. As against that, learned advocate for the opponent-accused supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution. In support of her case, she relied upon the decision of Kotecha Prabhuchandra Mansang Vs. State of Gujarat Page 6 of 16 R/CR.A/19/1999 JUDGMENT (Criminal Appeal No.1043/1996, dated 04.03.2015). While taking into consideration the ratio laid down in the said case, this criminal appeal deserves to be dismissed. Hence, no interference is called for with the same at the hands of this Court. Therefore, the criminal appeal is required to be dismissed and the impugned judgment and order passed by the learned Trial Court is required to be confirmed.
9. I have heard learned APP for the appellant- State and the learned advocate for the accused and perused the material on record with their assistance.
10. In view of the above, I have to appreciate the facts in this case from the touchstone of the decisions of the Hon'ble Apex Court laying down guidelines for having acquittal appeals.
11. The principles which would govern and regulate the hearing of appeal by this Court Page 7 of 16 R/CR.A/19/1999 JUDGMENT against an order of acquittal passed by the Trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR (2006 (6) S.C.C. 39), the Apex Court has narrated the powers of the High Court in appeal against the order of acquittal. In Para-54 of the decision, the Apex Court has observed as under;
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
12. Further, in the case of CHANDRAPPA VS. STATE OF KARNATAKA (2007 (4) S.C.C. 415), the Apex Court laid down the following principles;
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge;
[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal Page 8 of 16 R/CR.A/19/1999 JUDGMENT is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court."
13. Thus, it is a settled principle that while exercising appellate powers, even if two Page 9 of 16 R/CR.A/19/1999 JUDGMENT reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.
14. Even in the case of STATE OF GOA Vs. SANJAY THAKRAN & ANR. (2007 (3) S.C.C. 75), the Apex Court has reiterated the powers of the High Court in such cases. In Para-16 of the said decision, the Court has observed as under;
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."Page 10 of 16
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15. Similar principle has been laid down by the Apex Court in cases of STATE OF UTTAR PRADESH VS.
RAM VEER SINGH & ORS. (2007 A.I.R. S.C.W. 5553) and in GIRJA PRASAD (DEAD) BY L.R.s VS. STATE OF MP (2007 A.I.R. S.C.W. 5589). Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
16. In the case of LUNA RAM VS. BHUPAT SINGH AND ORS. ((2009) SCC 749), the Apex Court in Paras-10 and 11 has held as under;
"10. The High Court has noted that the prosecution version was not clearly believable. Some of the so called eye witnesses stated that the deceased died because his ankle was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence."
17. Even in a recent decision of the Apex Court in the case of MOOKKIAH AND ANR. VS. STATE, REP. Page 11 of 16
R/CR.A/19/1999 JUDGMENT BY THE INSPECTOR OF POLICE, TAMIL NADU (AIR 2013 SC 321), the Apex Court in Para-4 has held as under:
"4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573]"
18. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh Page 12 of 16 R/CR.A/19/1999 JUDGMENT reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of STATE OF KARNATAKA VS. HEMAREDDY (AIR 1981 SC 1417), wherein it is held as under;
"......This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:
(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice."
19. In the recent decision, the Hon'ble Apex Court in SHIVASHARANAPPA AND OTHERS V/S. STATE OF KARNATAKA (JT 2013 (7) SC 66) has held as under:
"That appellate Court is empowered to re-appreciate the entire evidence, though, certain other principles are also to be adhered to and it has to be kept in mind that acquittal results into double presumption of innocence."
20. Having gone through the entire record and proceedings, most of the witnesses have turned hostile and they have not supported the case of the prosecution. The complainant-Dhirajlal, who Page 13 of 16 R/CR.A/19/1999 JUDGMENT is also officer, stated in his deposition that the accused was not present at the petrolpump. The learned Trial Court, while discussing the issue in Paragraph nos.13, 14 and 15 and on appreciation of evidence on record, has rightly acquitted the accused. On the touchstone of the decision of this Court in the case of Kotecha Prabhuchandra Mansang Vs. State of Gujarat (supra), wherein this Court acquitted the accused, this appeal deserves to be dismissed. The Trial Court has observed that there are various discrepancies in the evidence produced by the prosecution. The Trial Court has doubted the veracity of the investigation. There are loopholes in the evidence and investigation which has been observed by the Trial Court. Moreover, the incident is of the year 2001 and I do not find any strong ground to reverse the decision of the Trial Court. In that view of the matter, the view taken by the Trial Court is not required to be disturbed.
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21. I am, therefore, of the considered opinion that the findings recorded by the Trial Court in acquitting the accused of the charge leveled against them are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. I am in complete agreement with the reasonings given and the findings arrived at by the Trial Court. No interference is warranted with the judgment and order of the Trial Court.
22. In view of the above discussions, I am of the opinion that the learned Judge committed no error in passing the impugned judgment and order. Hence, the present appeal deserves to be dismissed.
23. In the result, the appeal fails and is dismissed. The judgment and order of the Trial Court dated 15.10.1998 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P be sent back to the concerned Trial Court, forthwith.
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(K.J.THAKER, J.)
rakesh/
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